The Trial of German Major War Criminals

Sitting at Nuremberg, Germany
November 20 to December 1, 1945

Ninth Day:
Friday, 30th November, 1945
(Part 7 of 9)

[Page 292]

Q. Do you know to whom or to what organisations such orders
were usually addressed?

A. Orders of this kind, involving the question of principle,
went to the O.K.W., because things relating to prisoners of
war were the concern of the O.K.W., and in particular of
Reinecke, which also explains the discussions with Reinecke.

Q. So usually the members or some of the members of the
General Staff would have known of such orders, would they
not?

A. Certainly, in accordance with its essential contents,
many members of the Wehrmacht knew of this order, and the
reaction of the Wehrmacht against it was tremendous. Apart
from the service view, which is what I have reported here,
and elsewhere, these orders were discussed a great deal, in
casino clubs, because all these matters became manifest in
the most undesirable form and had a most undesirable effect
on the troops. As a matter of fact, officers and high-
ranking officers at the front, either did not transmit these
orders or sought to evade them in some way, and this was
discussed a great deal. I have named some of these officers;
some are listed in the notes, diary, etc. It was not an
everyday occurrence, and it was then the topic of the day.

Q. And were the orders known to the leaders of the S.A. and
S.D.?

A. They must have been known to them, for the ordinary
soldiers who watched all these proceedings knew and spoke
about them, and partly they were also known to the civilian
populace; civilians and men from the front, as well as
wounded soldiers, told far more details about these matters
than I could tell here.

THE PRESIDENT: General Nikitchenko wants to ask a question.

BY THE TRIBUNAL (Gen. Nikitchenko):

Q. You have told us that you received instructions about the
murder of prisoners of war and brutal treatment. You
received these orders from Reinecke?

A. Well, I must correct something that I said. We didn't get
the order in the Ausland-Abwehr because it had nothing to do
with us, but I knew about it, and

[Page 293]

went into this conference as a representative of the Ausland-
Abwehr. But we ourselves had nothing to do with the
treatment of prisoners of war, and certainly not in this
negative sense.

Q. Apart from these meetings, the meetings of the High
Command, were such instructions ever given? Were there any
meetings of the High Command headquarters about killings and
ill-treatment of prisoners of war?

A. There certainly had been a number of discussions about
this subject, but I was present at only one of them, which I
described, so I cannot say anything more about it.

Q. At headquarters?

A. In the O.K.W. - at headquarters.

Q. At the headquarters of the German Army?

A. Certainly, in the O.K.W., where Amt Abwehr had been
requested to send a delegate in my person, particularly
because of its protests. As a matter of fact our Amt had
nothing to do with prisoners of war in this sense. But we
were, because of technical and natural reasons, interested
in proper treatment of the prisoners.

Q. But the meetings were not about treating prisoners, about
killing and murdering them? At these meetings, Ribbentrop
was also present?

A. No; these discussions, I mean the one conference about
which I have given testimony, took place after the
accomplished fact. Everything had already happened;
executions had already taken place, and the results had
already been shown. Protests of all kinds had already been
made, they had come from the front and from other places.
For example, from our own office, Abwehr; this conference
was intended to show the necessity for the orders which had
already been given, and to justify measures already taken.
These discussions took place after the beginning of
operations, after the orders which had been given had
already been carried out. All that I have touched upon or
stated had already happened and its effect had already been
felt in the worst sense. Facts that had already happened
were being discussed with the idea of making one more
attempt, a last attempt on our part, to get a grip of the
situation.

Q. All these reports brought about results?

A. That is what I talked about, and that was the subject of
the discussions with Reinecke. I did not take part in the
other discussions and therefore have nothing to say.

Q. At which other meetings had orders been given about
killings and burning of towns and villages?

A. I must make something clear, relative to what the General
has in mind. Am I being asked about the conference in the
Fuehrer's train prior to the fall of Warsaw? According to
the entries in Canaris' diary, it took place on the 12th
September, 1939. The meaning of this order which Ribbentrop
gave, and which Keitel gave them in a brief discussion, was
again referred to by Ribbentrop, and was in reference to the
organisations of National Ukrainians with which Amt Abwehr
co-operated along military lines, that is, in the matter of
military operations to bring about an uprising in Poland,
with the Ukrainians--an uprising which aimed to exterminate
the Poles and the Jews, that is to say, above all such
elements as were always being discussed in these
conferences. When Poles are mentioned, the intelligentsia
especially is meant, and any persons who would be prototypes
of the national will of resistance. This was the order given
Canaris in the connection I have already described and as it
has already been noted in the memorandum. The idea was not
to kill Ukrainians but, on the contrary, for us to carry out
this task of a purely political and terroristic nature
together with the Ukrainians. The co-operation and what
actually occurred in the connection between Ausland-Abwehr
and these people who were only about five hundred or a
thousand - all this can be clearly seen from the diary. This
was simply a preparation for military sabotage.

[Page 294]

Q. These instructions were received from Ribbentrop and
Keitel?

A. They came from Ribbentrop. Such orders which concerned
the political contents couldn't possibly come from Amt-
Ausland-Abwehr because any -

Q. I am not asking you whether they could or could not. I am
asking where they came from.

A. They came from Ribbentrop, as is seen from the memorandum
that I made for Canaris.

THE PRESIDENT: yes, Doctor

DR. DIX (Counsel for defendant Schacht): I have three short
questions, May I put them?

THE PRESIDENT: It is now past four, and we have to hear the
requests of the defendant Hess, and the Court has to be
cleared for them. So I think you had better postpone then,
until tomorrow.

(A short recess was taken, and all the defendants except
Hess were removed from the courtroom.)

THE PRESIDENT: I call upon counsel for the defendant Hess.

DR. VON R0HRSCHEIDT: (counsel for the defendant Hess): May
it please the Tribunal, I am speaking here as counsel for
the defendant Rudolf Hess.

In the proceedings which have already been opened against
Hess, the Court should solely decide on the question whether
the defendant is fit or unfit to be heard, and further,
whether he might be considered entirely irresponsible.

The Court itself has expressed this judicial conception by
asking the experts to state their opinion with regard to his
fitness to plead; firstly, is the defendant in a state in
which he can plead on the charge; secondly, as to his mental
stability; the question here was formulated as to whether
the defendant is mentally sound or not

In respect to question 1, is the defendant in a state fit to
plead, the Tribunal on the basis of its determination of the
issue "is the defendant fit to plead his case?" asked the
experts specifically whether the defendant is sufficiently
in possession of his mental faculties to understand the
proceedings, and whether he is qualified for an adequate
defence - that is, to repudiate a witness to whom he objects
and to understand details given in evidence.

During several sessions the experts to whom this task was
entrusted, acting as commissions, have examined Hess on
several days and have given their expert opinion concerning
these questions to the Tribunal, and I, as the defendant's
counsel, after having studied this experts' opinions (which
I couldn't do very thoroughly because time was so short) and
in view of the experience and knowledge I gained in almost
daily discussions with the defendant, consider it my duty to
state that, in my opinion, the defendant Hess is not capable
of pleading.

As his defence counsel I am therefore in duty bound to file
the following motions on behalf of the defendant Hess:

Firstly, I ask for a Court decision that the proceedings
against Hess be temporarily suspended. Secondly, in case his
inability to plead should be admitted by the Tribunal, I
should request the Tribunal not to proceed against the
defendant in absentia. Thirdly, in case the Tribunal should
consider Hess fit to plead, I should ask for a consensus of
opinion of further competent psychiatrists.

Here, however, before I come to the reasons for my
applications, I should like to say, on behalf of the
defendant, that Hess himself thinks he is fit to plead and
would like to tell the Court so.

I would now like to give the reasons for my application:

As regards (1): If my defendant - my client, rather - is not
fit to plead, I should like the proceedings against Hess to
be temporarily suspended.

In connection therewith and to explain the reasons for my
application it is permissible for me, I believe, to refer to
the opinions already submitted to the Tribunal.

[Page 295]

Pursuant to the questions placed before them by the
Tribunal, the experts come to the following conclusion which
I infer from the consensus of opinions as - I must term it -
having been rendered by a mixed delegation, which as far as
I could determine consisted of English, Soviet, and American
experts, the opinion bearing the date of 14th November,
1945, and I should like to cite textually from it. In this
opinion it is stated, "that the capability of the defendant
Hess is impaired"; that is to say, the capacity to defend
himself and to face a witness and to understand the details
of evidence. I have cited this formulation of the opinion
because it is closest to the questions put to the experts by
the Tribunal.

Going further, another opinion says that even if Hess'
amnesia does not prevent the defendant from understanding
what happens around him-and to follow the proceedings in
Court -

THE PRESIDENT (interposing): Would you speak a little more
slowly? The interpreters are not able to interpret so fast.

Would you also refer us especially to those parts of the
medical reports to which you wish to draw our attention?

Do you understand what I said?

DR. VON ROHRSCHEIDT: Yes.

I should like to mention that I cannot refer to quotations
according to the pages of the original text, or English
text, as I only have the German translation, so I can only
state that the first quotation -

The first quotation -

THE PRESIDENT (interposing): You can read the words in
German, and they will be translated into English.

Which report are you referring to?

DR. VON ROHRSCHEIDT: For the quotation that I gave I was
referring to the expert report, as far as I can see from my
German translation which was given on the 14th November,
1945, which was drawn up by the delegation of English,
Soviet and American experts and which accompanied the report
of the 17th of November, 1945. What I quoted was the
following - may I repeat it?

The passage runs: "The capability of the defendant Hess in
respect to his being able to defend himself, to face a
witness, and to understand details of the evidence given, is
impaired". I should like the Tribunal to tell me -

THE PRESIDENT: Can you say which of the doctors you are
quoting?

DR. VON ROHRSCHEIDT: It is the report which, in my copy, is
dated the 14th of November, 1945, and, as I said, was
presumably signed by Soviet, American and English doctors.

Unfortunately, when returning the material after completion
of translation into German yesterday evening, I did not
succeed in my attempt to obtain the original text, because
of lack of time.

THE PRESIDENT: Have the English prosecutors got a copy, and
can you tell us which it is?

SIR DAVID MAXWELL FYFE: I think I am in the same
difficulties as your Lordship. On the order that I have, I
have copies of four medical reports. Your Lordship will see
at the end of the document headed "Order", it says, "Copies
of four medical reports are attached."

The first one of these is signed by three English doctors on
the 19th of November.

Then there is a report signed by three Soviet doctors, dated
the 17th of November.

Another one is signed by three Soviet doctors and the French
doctor dated the 16th of November.

These are the ones which I have with the Court's order. The
fourth, dated 20th November, is signed by Drs. Delay, Lewis
and Cameron, and Colonel Paul Schroder.

[Page 296]

THE PRESIDENT: Yes.

I don't know what this report is that you are referring to.

SIR DAVID MAXWELL FYFE: Dr. von Rohrscheidt seems to have an
unsigned report of the 14th.

THE PRESIDENT: Dr. von Rohrscheidt, have you got the four
reports which are really before us? I will read them out to
you:

The first one I have got in my hand is the 19th of November,
1945, by Lord Moran, Dr. Reece, and Dr. Riddoch. Have you
got that? That is the English report.

DR. VON ROHRSCHEIDT: I only have this report in the German
translation and not in the original.

THE PRESIDENT: But if you have got it in the German
translation, that is quite good enough.

Then the next one is dated the 20th of November, 1945, by
Dr. Delay, Dr. Nolan Lewis, Dr. Cameron and Colonel Paul
Schroeder.

Have you got that?

DR. VON ROHRSCHEIDT: Yes, I have that one.

THE PRESIDENT: That is two.

Then, the next one is dated the 16th of November, and is
signed by three Soviet doctors and one French doctor, Dr.
Jean Delay, dated the 16th of November. Have you got that?

Then there is another report of the 17th November, signed by
the three Soviet doctors alone, without the French doctor.

Now, will you refer to the passages in those reports upon
which you rely?

There is another report by the two English doctors which is
practically the same. That is the one I have already
referred to, that does not contain the name of Lord Moran on
it, dated the 19th of November.

DR. VON ROHRSCHEIDT: If the Tribunal please, I think I can
shorten this speech to the Tribunal. My view is that all the
experts' opinions can be summed up as stating that the
capability of the accused Hess to defend himself, to face a
witness, and to understand details of the evidence given - I
did not keep exactly to these words in my statement -

If we assume that all the medical opinions agree as to the
fact that defendant Hess' capacity to defend himself is
impaired, I, as his defence counsel, would draw the
conclusion that defendant Hess' capacity to plead must be
considered as being nil. The reduced capacity of the
defendant to defend himself, which is recognised as amnesia
by all experts, who describe it as a mental condition of a
mixed character rather than a mental abnormality, must be
accepted as meaning that he is unfit to plead.

I am of the opinion that the conclusion drawn by the medical
experts implies, that in whatever way the question be
formulated its answer will be, "Hess cannot be suitably
defended on account of his mental defect." The medical
report is based on the assumption "that the defendant is not
insane". That is not the important point at the moment
because according to the medical report it is, in my
opinion, convincingly stated, that because of reduced mental
ability the defendant is not in a condition to understand
the proceedings.

Speaking for myself - and I think that my opinion is in
agreement with the medical opinion - I believe that the
defendant is quite incapable of making himself understood in
the manner that is to be expected from a mentally normal
person.

In view of my own experience I consider that the defendant
is incapable of grasping the charges which the Tribunal will
bring against him, to the extent that is required for his
defence, because his memory is very unreliable. Because of
his loss of memory he remembers neither events of the past
nor the persons who were associated with him in the past. I
am, therefore, of the opinion that defendant's own claim
that he is fit to plead is irrelevant. The reduction of the
defendant's

[Page 297]

capacity will not improve within a given time, according to
the medical report and therefore I think that the
proceedings against him should be suspended.

It is not certain that the treatment of narcotic analysis
suggested by the medical experts would bring about the
desired effect, nor that a determined period of time can be
given, during which this treatment would result in the
complete recovery of the defendant's health. The reproach
has been raised in the medical report against the defendant
of deliberately refusing to undergo such medical treatment.
The defendant tells me that, on the contrary, he would
readily undergo treatment, but that he refuses the suggested
cure because he thinks first of all, that he is already fit
to plead and therefore considers this cure as unnecessary,
and secondly, because he disapproves on principle of such
violent methods, and finally because he is of the opinion
that such an operation, at precisely this time, might render
him unfit to plead or to take part in the proceedings, which
is the very thing he wishes to avoid.

If, however, defendant is incapable of pleading and of
defending himself, as stated in the medical report, and if
the aforesaid condition is likely to last for a long time,
this would, in my opinion, provide the basis for a temporary
suspension of the proceedings against him.

My second motion is the following: In case this Tribunal
should accept my former motion and declare the defendant
Hess unfit to plead, then, according to Article 12 of the
Charter, it would be possible to proceed against the
defendant in absentia. Article 12 provides that the Tribunal
has the right to proceed against a defendant in absentia if
he cannot be found, or if this procedure is, for other
reasons, in the interests of justice.

Is it then in the interests of justice to proceed against
the defendant in absentia? In my opinion it is incompatible
with objective justice if actual proofs are available, as in
the present case, that the defendant's capacity is reduced
owing to illness, i.e., amnesia which has been recognised in
all medical reports, and that he is, therefore, unable to
personally safeguard his rights and to attend Court-
sessions.

In a trial where charges are being brought against the
defendant, so grave that they might entail the death
penalty, it seems incompatible with objective justice that
the defendant should be deprived of the rights granted to
him under Article 16 of the Charter, although medical
opinion confirms the existence of reasons of health.

Article 16 of the Charter makes, however, provisions for the
defendant's defence, for the possibility of furnishing
evidence to this end, for cross-examining every witness
called before the Court, all of which is of so great an
importance for the defence that failure to make use of any
of these privileges would, in my opinion, constitute a grave
injustice to the defendant. Therefore a trial in absentia
cannot be accepted as a fair trial.

If, as I have stated, the defendant's capacity to defend
himself is reduced owing to the reasons already mentioned,
it is equally established that the defendant is not in a
position to give his counsel the necessary information and
to enable his counsel to defend him in his absence.

Since the Charter has precisely laid down the rights of the
defendants, it seems unjust to me as defence counsel that
the defendant should be deprived of these rights in a case
where, by reason of illness, he is handicapped in
safeguarding his interest in his defence and in Court
proceedings.

The regulation laid down in Article 12 of the Charter, on
proceedings in absentia against a defendant, must surely be
looked upon as an exceptional measure, which in my opinion
should only be applied against a defendant if he endeavours
to evade the proceedings in any way except through force of
circumstances. But defendant Hess has told me, and he will
probably emphasise this before the Tribunal, that he wishes
to attend the proceedings, and he will certainly feel that
it is particularly unfair if the proceedings were carried on
in absentia, and regardless of his own readiness to plead.

[Page 298]

I therefore request the Tribunal, if it should declare the
defendant not competent to plead, that it will not proceed
in his absence.

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